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to Section One | to Arts & Entertainment
posted Friday, December 25, 2015 - Volume 43 Issue 52
Religious schools may not discriminate against married Gays or Lesbians, Massachusetts judge rules
Section One
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Religious schools may not discriminate against married Gays or Lesbians, Massachusetts judge rules

by Mike Andrew - SGN Staff Writer

Religious schools may not discriminate against married Gays or Lesbians in their employment policies, a Massachusetts judge ruled on December 16.

Massachusetts Superior Court Justice Douglas H. Wilkins said that Fontbonne, a Catholic girls school, could not rely on statutory religious exemptions to exclude married Gays or Lesbians from their employees.

The case arose from a suit by Matthew Barrett, who charged that the school illegally refused to hire him because he listed his husband, Ed Suplee, as his emergency contact. He was represented by Gay and Lesbian Advocates and Defenders (GLAD).

Barrett said in court documents that he has 20 years of experience in food service management and applied to become food services director at the prestigious girls' prep school run by the Sisters of St. Joseph.

Ellen Barnes, the head of school, told Barrett during the hiring process that every employee is regarded as a 'minister of the mission' and asked whether he could 'buy into' the expectation he would 'model Catholic teaching and values.'

He said he could and was offered the job, which he accepted. He was then asked to complete standard employee forms.

After looking at Barrett's forms, Barnes called him into a meeting and told him he would not be hired because 'he was a spouse in a same-sex marriage, which was inconsistent with the teachings of the Catholic Church.'

Barrett sued, saying that Fontbonne was discriminating against him and his partner because of their sex (he would have been hired had he or his spouse been female) and their sexual orientation (he would have been hired had he been straight).

The school replied that it didn't care about Barrett's sex or sexual orientation; it just wanted to preserve its religious definition of marriage.

The judge agreed with Barrett, finding that Fontbonne did, indeed, discriminate against him because he was a man married to a man.

Judge Wilkins also dismissed the school's claim that it had a constitutional right to 'expressive association' - just as the Boy Scouts were held to have a right to exclude Gay scouts or scout leaders.

Wilkins said there was little risk that hiring Barrett would mislead students and the public into thinking that Fontbonne, as a Catholic institution, somehow approved of or endorsed same-sex marriage, in light of 'widespread public awareness of the civil laws allowing same-sex marriage and prohibiting employment discrimination, coupled with Fontbonne's ability to explain its position without interference in the form of advocacy from Barrett.'

In fact, the issue of advocacy - for or against the Catholic Church's position on marriage - didn't even enter into the case, the judge said.

'[Barrett] was not denied employment for any advocacy of same-sex marriage or gay rights,' wrote Wilkins. 'Nothing on that form suggested that Barrett claimed his marriage to have sacramental or other religious significance or that it was anything but a civil marriage relationship.'

Wilkins also rejected the school's argument that it was entitled to require all employees, whatever their job duties, to 'model Catholic values.' Accepting that position, the judge said, would permit 'an employer to grant itself constitutional protection from antidiscrimination laws simply by saying the right words.'

He concluded that the state's compelling interest in combatting employment discrimination against 'historically disadvantaged groups' weighed heavily against Fontbonne's position.

Wilkins gave summary judgment for Barrett and ordered both sides to submit briefs on whether there should be a follow-up trial to award damages.

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